[U] Commonwealth v. Hemingway

Appeal from the Judgment of Sentence May 24, 2012 In the Court of Common Pleas of Clearfield County Criminal Division at No(s): CP-17-CR-0000043-2009

BEFORE: BENDER, P.J.E., LAZARUS, J., and MUNDY, J.

MEMORANDUM

BENDER, P.J.E.

Appellant, Maharaji Hemingway, appeals from the judgment of sentence of an aggregate term of 17 to 26 years' incarceration, imposed following his conviction for numerous drug-related offenses. Appellant challenges the sufficiency and weight of the evidence supporting his conviction, and the sufficiency of the evidence supporting the application of a mandatory minimum sentence. Appellant also claims the trial court erred by denying his motion to sever his case from his codefendants, and by repeatedly denying his motions for bail. After careful review, we vacate Appellant's sentence and remand for resentencing.

The trial court summarized the facts adduced at trial as follows:

During the course of an eight (8) day trial, the Commonwealth presented the testimony of twenty-four (24) witnesses who were connected with or participated in the cocaine distribution ring alleged in this case. Of those, at least ten (10) witnesses provided testimony directly regarding the [Appellant] and/or his involvement in selling cocaine in Clearfield County. For example, Arianne Brocious testified that she first met [Appellant] (known to her as "Bean") through her cousin, Kara Butler, to purchase cocaine. She testified that she then introduced [codefendant Michael] Styers to [Appellant], and made multiple trips with Styers and/or with [codefendant Charles] Gearhart to Philadelphia to purchase cocaine from [Appellant]. In her testimony, Ms. Brocious estimated that four (4) ounces of cocaine were purchased per trip, with the trips occurring once or twice a week. She testified that she made around or more than fifteen (15) trips with Styers and/or Gearhart, and that they would also make trips without her.

Tara Swatsworth (Osborn) testified that she became involved with the use of cocaine in March of 2006, buying from Richard Smeal and Jacob Pittman. She first met [Appellant] as "Bean" when he came to her house in Curwensville, Clearfield County, Pennsylvania. She testified that he arrived with a shoebox containing a half full half-gallon bag of loose cocaine. Ms. Swatsworth then witnessed [Appellant] give Mr. Pittman ten (10) one-gram bags of cocaine to sell, according to her testimony. She then recalled that Mr. Pittman and herself [sic] went around selling the bags and then returned to her residence where they picked up twenty (20) more one-gram bags of cocaine to sell and/or use. She had further contact with [Appellant] through cell phone calls and a trip to Philadelphia, testifying that she took Mr. Smeal along to meet [Appellant] and obtain cocaine. Ms. Swatsworth testified that she had sexual intercourse with [Appellant] and was given an "eightball", approximately three (3) grams of cocaine, and Mr. Smeal was fronted approximately an ounce of cocaine by [Appellant].

Kristen Wilsoncroft testified that she met "Bean" in approximately 2005 through Styers at her father's residence in Clearfield, and that she then drove [Appellant] back to Philadelphia. She apparently became [Appellant]'s pseudo-chauffeur, testifying that he would call her on his cell phone, she would pick him up in Philadelphia, drive him to Clearfield, and then back home to Philadelphia in exchange for free cocaine. Ms. Wilsoncroft testified that she made approximately seven such trips with [Appellant] to and from Philadelphia in the spring/summer of 2005. She also testified to having a sexual relationship with [Appellant] over the course of their association.

Rick Wilkinson testified that he met [Appellant] in the summer of 2005 on a trip to Philadelphia with B.J. Kifer and his ex-wife, Jodi Wilkinson, where he purchased cocaine from [Appellant]. According to his testimony, Mr. Wilkinson lent his car to Styers, who used it to make trips to Philadelphia to obtain cocaine from [Appellant] throughout 2005. He also testified that [Appellant] came to his (Wilkinson['s]) residence in Clearfield County, and that [Appellant] contacted him in 2006 and wanted him to sell cocaine.

Other witnesses who testified to events regarding [Appellant] included Charles Gearhart (through Grand Jury transcript), Brandon Kifer, Joseph Hunter, Danielle Gearhart, Richard Smeal, and Jacob Pitman. The testimony established that [Appellant] was a main supplier of cocaine to Styers and made numerous trips to Clearfield County to sell cocaine, staying in hotel rooms or [at] Tara Swatsworth's house. Testimony was also provided that there were sightings of [Appellant] at the Styers residence, the Wilsoncroft residence, the Wilkinson residence, and the Gearhart residence during this time period. Witnesses testified to purchasing cocaine from [Appellant], being approached to sell for [Appellant], and that [Appellant] was seen in possession of a large amount of loose cocaine. Although many of the witnesses had prior criminal records and were co-conspirators in the drug organization, these matters were fully explored on direct and cross-examination, along with any plea agreements with the Attorney General.

Trial Court Opinion (TCO), 1/31/13, at 3 – 5.

On September 25, 2008, a grand jury recommended that criminal charges be filed against 14 individuals, including Appellant, for their involvement in the cocaine distribution ring centered in Clearfield County. The Pennsylvania Office of the Attorney General (the Commonwealth) filed charges against Appellant on October 31, 2008.

Prior to his trial, Appellant and his codefendants (collectively, the defendants) filed motions in limine seeking to prevent the Commonwealth from calling 34 witnesses who had testified before the grand jury. The defendants' motions alleged that the Commonwealth failed to provide copies of the grand jury transcripts of the witnesses' testimonies in a timely fashion, in abrogation of a pretrial conference order. The trial court granted the requested relief on July 13, 2009, and the Commonwealth immediately appealed. This Court reversed and remanded on January 11, 2011, after concluding that the Commonwealth had "substantially complied" with the pretrial conference order. Commonwealth v. Hemingway, 13 A.3d 491, 503 (Pa.Super. 2011). Appellant did not seek review of that decision with our Supreme Court.

While the Commonwealth was appealing from the order granting the defendants' motions in limine, Appellant made several attempts to have his bail of one million dollars straight cash reduced.[1] On July 31, 2009, the trial court denied Appellant's motion for reduction of bail following a hearing. Appellant filed a petition for review with this Court, which we denied on August 19, 2009. The Supreme Court denied his petition for review on February 16, 2010. Appellant filed another motion to reduce his bail on December 22, 2010. That motion was denied by the trial court on January 14, 2011.

On April 5, 2012, in order to assess the applicability of mandatory minimum sentences, the trial court conducted an evidentiary hearing for the purpose of determining the weight of the narcotics that formed the basis for Appellant's six delivery convictions. Both parties were permitted to present evidence and submit briefs for the trial court's consideration. Subsequently, on May 24, 2012, Appellant was sentenced to an aggregate term of 17 – 26 years' incarceration and fined a sum of $155, 005.[2] Afterward, Appellant filed a timely post-sentence motion which was denied by operation of law on October 12, 2012. Appellant then filed a timely notice of appeal on October 23, 2012.

Appellant now presents the following questions for our review:

1. Did the Commonwealth present sufficient evidence, as a matter of law, to sustain the verdicts on all counts?

2. Was the verdict contrary to the weight of the evidence on all counts[, ] as stated in the Post-Sentence Motion[, ] and should a new trial have been granted?

3. Was the evidence regarding the weight of the cocaine sufficient to establish the mandatory minimum sentence[s]?

4. Did the trial court err when it denied the Motion to Sever filed on February 16, 2011?

5. Did the trial court err when it continually denied the multiple bail motions filed by the Defendant[]?

Appellant's Brief at 13.

Sufficiency of the Evidence - Verdict

Appellant's initial claim challenges the sufficiency of the evidence supporting his convictions. First, he asserts that his convictions at counts 1 – 6 were unsupported by sufficient evidence because "the Commonwealth failed to prove that a controlled substance was possessed by" Appellant. Id. at 24. Second, he contends there was not sufficient evidence of a conspiracy at count 7 because "the Commonwealth failed to prove that [Appellant] committed an overt act in furtherance of a conspiracy to sell cocaine." Id. Third, as to count 8, he claims a lack of sufficient evidence because "the Commonwealth failed to prove that [Appellant] utilized a communication facility to cause the sale of a controlled substance." Id. Fourth, regarding count 9, he asserts that "the Commonwealth failed to prove that [Appellant] completed financial transactions." Id. Finally, Appellant also contends that the evidence was insufficient to support his convictions at counts 11 and 12.

Our standard of review for sufficiency claims is as follows:

A claim challenging the sufficiency of the evidence is a question of law. Evidence will be deemed sufficient to support the verdict when it establishes each material element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt. Commonwealth v. Karkaria, 533 Pa. 412, 625 A.2d 1167 (1993). Where the evidence offered to support the verdict is in contradiction to the physical facts, in contravention to human experience and the laws of nature, then the evidence is insufficient as a matter of law. Commonwealth v. Santana, 460 Pa. 482, 333 A.2d 876 (1975). When reviewing a sufficiency claim the court is required to view the evidence in the light most favorable ...

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